The resolution echoes earlier attention to the problem which it defines as including

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender. Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?

Professor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform,available in draft on ssrn. Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women." She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted. In West Virginia, the Supreme Court of Appeals in Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men. As Goldscheid describes it, the court

concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.

To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible. However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,

the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender. The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services. For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.

These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."

Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing. It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.

The Court's Order was accompanied by two opinions. In the first, a concurring opinion authored by Justice Scalia and joined by Justices Thomas and Alito, the four factors for a stay are laid out:

(1) whether the State made a strong showing that it was likely to succeed on the merits,(2) whether the State would have been irreparably injured absent a stay, (3) whether issuance of a stay would substantially injure other parties, and (4) where the public interest lay.

Justice Scalia's relatively brief opinion is primarily a refutation of the dissenting opinion, arguing that the

dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably un- constitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards— which do not include a special “status quo” standard for laws affecting abortion.

The dissent, written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the Fifth Circuit's issuance of the stay was "demonstrably wrong" in its application of the standards for issuing a stay based on six reasons:

the district judge's order maintained the status quo that existed in Texas prior to the hospital admitting privileges requirement;

the Fifth Circuit's stay disrupted that status quo, so that a "significant number of women seeking abortions" will be affected and that the "longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional;"

the Fifth Circuit agreed to expedite its consideration, again favoring the status quo;

the balance of harms tilts in favor of the applicants;

the "underlying legal question—whether the new Texas statute is constitutional—is a difficult question" that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit's ultimate decision;" and

there was not a significant public interest consideration.

Given the four Justices who joined the dissent, it is clear that the decision not to vacate the stay was 5-4, although Justice Kennedy and Chief Justice Roberts did not join Justice Scalia's concurring opinion.

The restrictive abortion statute passed by Texas has been deeply divisive and the Court's decision demonstrates that the members of the Court are likewise deeply divided.

In a divided opinion including two senior judges, the Court of Appeals for the District of Columbia Circuit in Gilardi v. HHS entered the fray regarding corporate rights under RFRA and the First Amendment regarding the requirement that an employer include contraceptive coverage in its health care insurance. Recall that just last week, the Sixth Circuit denied the claim of Eden Foods, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties that
a for-profit secular corporation cannot assert a claim to religious
freedom under RFRA, the Religious Freedom Restoration Act.
This is contrary to the holding of the divided en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently
before the United States Supreme Court on a petition for writ of
certiorari filed by the Solicitor General on behalf of Sebelius.

In Gilardi, the divisions by the DC Circuit judges - - - Janice Rogers Brown, Harry Edwards, and A. Raymond Randolph - - - reflect the divisions expressed in the other opinions. Judge Brown's main opinion is joined in various parts by only one of the other two judges, both of whom wrote separate opinions. Judge Randolph's opinion is a few pages, while Judge Edwards' opinion, concurring in part and dissenting in part is longer than the majority opinion.

The case involves Francis and Philip Gilardi, adherents of Catholicism, who oppose contraception for women. They are owners of Freshway Foods and Freshway Logistics, closely-held corporations that employ approximately 400 employees. Important for the analysis, the corporations "have elected to be taxed under Subchapter S of the Internal Revenue Code." Judge Randolph's brief opinion has a good explication of the relevance of Subchapter S.

The judges, excepting Randolph, first decide that the corporations do not possess a right of religious freedom. The majority finds that RFRA's "person" language does not solve the issue, and turns to First Amendment doctrine. The court notes that perhaps the "constitutional arithmetic" of "Citizens United plus the Free Exercise Clause equal a corporate free exercise right" might "ultimately prevail, but "for now" there is "no basis for concluding a secular organization can exercise religion," thus agreeing with cases such as Eden Foods. In the brief concurring opinion, Judge Randolph states this issue need not have been addressed.

This "leaves the Gilardis," as the court phrases it, and finds that they suffer an injury "separate and distinct" from the corporation. The majority - - this time without the agreement of Judge Edwards - - - finds that the religious freedoms of the individual men are burdened under RFRA. It applies strict scrutiny, as required by RFRA, but interestingly quoting from Fisher, last Term's equal protection case involving racial classifications in affirmative action programs at the the University of Texas. The majority then rejects as compelling the government interests in safeguarding public health, protecting women's autonomy, or promoting gender equality, finding these interests both too broadly formulated and even if satisfactory, not being served by the least restrictive means. In short, the majority concludes, even without the contraceptive mandate, the "statutory scheme will not go to pieces."

Judge Edwards' lengthy opinion finds that while the Gilardis may be sincere, the legal claim that the mandate imposes a substantial burden on their individual rights of free exercise of religion because "their companies are required to provide health insurance that includes contraceptive services" is "specious." Judge Edwards argues that while the individuals may have Article II standing to pursue their claim, this does not mean that they have a valid one. Judge Edwards extensively rehearses the Supreme Court's free exercise doctrine, intertwined with RFRA, and discusses the burden on the Gilardis. In a paragraph that captures the disagreement over whether individuals are burdened by the acts of corporations, he argues:

Amici also contend that the difference between the
Mandate and paying wages is akin to the difference between a
person who opposes the death penalty being required to pay
taxes that fund executions, and being required to “purchase
the drugs for a lethal injection and personally deliver them to
the facility where the execution will take place.” Br. of
28 Catholic Theologians and Ethicists at 19. The problem
with this rather extraordinary example is that the Mandate
does not require the Gilardis to have nearly this degree of
personal involvement in providing contraceptives. The
Mandate does not require the Gilardis to transfer funds from
Freshway’s accounts directly to the manufacturers or retailers
of contraception. Nor are the companies required to deliver or
distribute contraception to employees. Under the Employee
Retirement Income Security Act, 29 U.S.C. § 1132(d)(1),
Freshway is a distinct legal entity from its self-insured group
health plan. The plan is operated by a third-party
administrator, and, pursuant to health privacy regulations, the
Gilardis are actually prohibited from being informed whether
individual employees purchase contraceptive products, or
about any other information regarding employees’ health care
decisions. See Br. of Americans United for Separation of
Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508;
45 C.F.R. § 164.510). Moreover, the Gilardis are free to
procure Mandate-compliant coverage for their employees
through an entirely independent, third-party insurance carrier,
rather than administering their own group health plan. Id. This
is a far cry from personally purchasing contraceptives and
delivering them to employees.

Further, Judge Edwards would find that even if there were a substantial burden, there are compelling governmental interests supporting the contraceptive mandate provisions, including "promoting public health, welfare, and gender equality." He would find the exemptions narrow and, analogizing to the Social Security tax upheld by the United States Supreme Court, the scheme cannot function if persons are allowed to opt-out because money is being spent in a manner that violates their religious beliefs.

Because the district court found as a matter of law that the Gilardis did not have a substantial likelihood of prevailing on the merits, it denied the prelimiary injunction. Having reversed that conclusion of law, the majority remands for a determination of the other considerations for a preliminary injunction.

But most certainly the Gilardis case - - - or this issue - - - will not simply end there. It may be determined by what the Court does in Hobby Lobby, even as Freshway Foods is distinguished by being a different type of corporation.

A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on
women seeking abortions or that the hospital-admitting-privileges
requirement creates a substantial obstacle in the path of a woman seeking an
abortion." The panel also concluded that "the State has made a strong showing of likelihood
of success on the merits" on its appeal on the partial injunction
pertaining to medication abortions.

As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of
the State in regulating the medical profession and the State’s interest in
“‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.

Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:

the district court’s injunction
continues to apply pending appeal with respect to a mother who is 50 to 63
days from her last menstrual period if the physician who is to perform an
abortion procedure on the mother has exercised appropriate medical judgment
and determined that, due to a physical abnormality or preexisting condition of
the mother, a surgical abortion is not a safe and medically sound option for
her.

While the United States Supreme Court has never declared that women possess a First Amendment or Equal Protection or any other constitutional right to be as shirtless as men in public, several state courts have found constitutional protections.

Yet even where there is state precedent, the police may not think so; and even when a woman about to be arrested tells the officiersabout a case, they may still not think so. That's the basis of the allegations in Krigsman v. New York City, a complaint filed earlier this month, that I discuss over atDressing Constitutionally.

The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act. There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.

Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and
Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights. Autocam, like the others, is a large corporation. And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products.

The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing: "Generally, shareholders of a corporation cannot bring claims intended to redress injuries
to a corporation, even when the corporation is closely held." The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view. Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.

As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to
a significant expansion of the scope of the rights the Free Exercise Clause" protected prior
to Employment Division v. Smith and the enactment of RFRA.

By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue. With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.) However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.

19th Annual Mid-Atlantic People of ColorLegal Scholarship Conference 2014Hosted by the University of Baltimore School of LawBaltimore, MDJanuary 23-25, 2014

– Conference Theme & Call for Papers –

President Lyndon B. Johnson’s Great Society and Beyond:The Historical and Contemporary Implications of Progressive Action and Human FulfillmentHonoring and Critiquing the 50th Anniversary of Johnson’s Vision

In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society. As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . . The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”

According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.” This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.

Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968. These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s. As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010. According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.” Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.

Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality. Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us. Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.

It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty. It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies. The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.

At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society. From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:

-- A Hand Up: The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964-- Beyond Legislative Bogs and Dangerous Political Animals: President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism-- Endangered Citizens?: Rights and Remedies after State v. Zimmerman-- Equality, Choice, and Happiness: the Rise and Fall of DOMA-- Guns or Butter: Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies-- Medicare, Healthcare, and Welfare: the Poor, the Elderly, and the Needy-- Moynihan and the Contemporary (In)Stability of the Black Family-- Racial (Dis)Harmony Then and Today-- Voting Rights: Shelby County v. Holder and the Promise of One Citizen, One Vote

Paper submissions must include a working title, bios, abstract, and contact information.Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: light_warrior@verizon.net.

In the closely watched case of M.C. v. Aaronson, a minor claims a violation of both substantive and procedural due process under the
Fourteenth Amendment by South Carolina doctors who performed genital
surgery on a child in state custody (foster care). We discussed the case when the complaint was filed in May.

In a 15 page order United States District Judge David Norton denied the motions to dismiss by the various defendants. With regard to the substantive due process right, the judge found that "M.C. has articulated that defendants violated his
clearly established constitutional right to procreation.," and as a "result, defendants’ assertion
of qualified immunity must fail at this stage in the litigation." Given this conclusion, the judge stated he "need not consider M.C.’s arguments that defendants also violated his rights to privacy
and bodily integrity."

As for the procedural due process rights, the judge again found that M.C. stated a claim, and that further analysis of the Matthews v. Eldridge factors was not appropriate at this stage.

But as the judge's opinion made clear, the hurdle of summary judgment looms:

Underlying this case’s complex legal questions is a series of medical and
administrative decisions that had an enormous impact on one child’s life. Details of how
those decisions were made, when they were made, and by whom are as yet unknown to
the court. Whether M.C.’s claims can withstand summary judgment challenges, or even
the assertion of qualified immunity at the summary judgment stage, is not for the court to
hazard a guess at this time. It is plain that M.C. has sufficiently alleged that defendants
violated at least one clearly established constitutional right – the right to procreate – when
they recommended, authorized, and/or performed the sex assignment surgery in April
2006.

Indeed, this same order included a grant of M.C.'s request for expedited discovery.

Celebrating ﻿﻿﻿﻿﻿﻿﻿the formal opening of the Catherine G. Roraback (pictured in watercolor left) Archive at Emory Law School .The workshop will be dedicated to Katie and her pioneering work on behalf of reproductive rights and justice.

Amy Kesselman (SUNY New Paltz), Vanessa King (Emory University School of Law)

The intertwining of our clothes and our Constitution raise fundamental questions of
hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear -- or don't -- is ubiquitous.

Product featured on the Conestoga Wood Specialties Corporation website

In a divided opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.

Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed. Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.

First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010). The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting
corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:

In fact, we are not aware of any case preceding the commencement of
litigation about the Mandate, in which a for-profit, secular corporation was
itself found to have free exercise rights. Such a total absence of caselaw
takes on even greater significance when compared to the extensive list of
Supreme Court cases addressing the free speech rights of corporations.

The majority distinguished religious
organizations, such as those involved in Gonzalez v. O Centro Espirita Beneficente
Uniao Do Vegetal, 546 U.S. 418 (2006) or Church of the Lukumi Babalu Aye, Inc. v.
Hialeah, 508
U.S. 520 (1993), because these are not "secular,
for-profit corporations."

Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners. The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion. However, it rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on
erroneous assumptions regarding the very nature of the corporate form." For the majority, it is a "fundamental principle" that "incorporation‘s basic purpose is to
create a distinct legal entity, with legal rights, obligations, powers, and
privileges different from those of the natural individuals who created the
corporation." Rather, "by incorporating their business, the Hahns themselves created
a distinct legal entity that has legally distinct rights and responsibilities
from the Hahns, as the owners of the corporation." Moreover, because

Conestoga is distinct from the Hahns, the Mandate does not
actually require the Hahns to do anything. All responsibility for complying with the Mandate falls
on Conestoga.

(emphasis in original).

The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.

In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it
the consequence that their rights of conscience are forfeit." Judge Jordan's dissent is clearly deeply felt, stating that

the government claims the right to force Conestoga and its owners to
facilitate the purchase and use of contraceptive drugs and devices, including
abortifacients, all the while telling them that they do not even have a basis
to speak up in opposition. Remarkable.

I
reject that power grab and would hold that Conestoga may invoke the right to
religious liberty on its own behalf.

Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue. Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.

In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity,available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:

Congress
should require that all Supreme Court opinions, including concurrences
and dissents, be issued anonymously. This should lead to fewer
self-indulgent separate opinions, more coherent and judicious majority
opinions, and more reason for future Justices to treat the resulting
precedents respectfully.

They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp
on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."

Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?

In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.

Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees. We've previously discussed the issue and the circuit split here.

The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states. The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust. Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges. But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment. The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits.

Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

Only a plurality of judges would have resolved the other two preliminary injunction factors - - - balance of equities and public interest - - - in Hobby Lobby and Mardel’s favor, thus the remand.

The majority, however, held

as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.

(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment. However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands. First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim). Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).

It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)." The majority found this distinction to be one that cannot be supported by First Amendment doctrine. It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights:

The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.

Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.

While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy.

Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point

nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”

The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested. This may certainly be going (back) to the United States Supreme Court.

The opinion then reaches the equal protection issue (under the Fifth Amendment given that DOMA is a federal statute) and concludes:

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.

The dissenters also noted the "irony" in the majority's position: "A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case."

The familiar liberal/conservative split of Justices is not apparent in Perry, since the issue os resolved on standing, but dominates Windsor. Yet in both cases, sharp disagreements about the democratic process are apparent.

The United States Supreme Court today decided United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had refused to review en banc, and which conflicted with a Sixth Circuit opinion.

The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech. In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that

the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.

He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.

The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs. The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite. Instead, although the lines could be difficult to draw, the Court held that

the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.

The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia. Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues. He criticizes the majority's distinction between central and not, but also finds that there is no coercion. He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject." Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable." But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument: "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons." More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3.

While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue.
(And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).

Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,

Alice
Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of
the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They
married in a private ceremony and] Just two weeks later, on November 26, 1924,
Leonard filed for annulment of his marriage to Alice. He argued that Alice had
lied to him about her race. Leonard claimed that Alice had committed fraud that
made their marriage void by telling him that she was white and by failing to
inform him that she was of “colored blood.”

Rather than litigate her whiteness as many
expected, she argued that he knew her racial status.

The trial
of the Rhinelanders proved to be shocking on many fronts. It involved
racy love letters, tales of pre-marital lust and sex, and the exhibition
of Alice’s breasts, legs, and arms in the courtroom to prove that
Leonard, who had seen her naked before marriage, would have known that
she was colored at the time of their nuptials. What was
most scandalous about the Rhinelander case,
however, was the trial’s end. The jury
returned a verdict for Alice, determining that Leonard knew her racial
background before marriage yet married her anyway.

Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.

As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.

The surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery. A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care). M.C., now 8 years old, brings the case through his adoptive parents.

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990). The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds.

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery. Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue.

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.

Courtesan in a Window, 18th C.

The United States Leadership Against
HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22
U.S.C. § 7601 et seq. provides: "No funds made available to carry out
this chapter, or any amendment made by this chapter, may be used to
provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking,
except that this subsection shall not apply to the Global Fund to Fight
AIDS, Tuberculosis and Malaria, the World Health Organization, the
International AIDS Vaccine Initiative or to any United Nations agency"

In other words, a NGO must have a "prostitution pledge" - - -
actually, an anti-prostitution pledge - - - as a condition of receiving
funds, unless it is one of the "grandfathered" NGOs. The question is
whether this pledge is compelled speech and whether any compelled speech
is sufficient to distinguish the situation from Rust v. Sullivan. The Second Circuit had held the provision unconstitutional.

Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations. Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:

JUSTICE
ALITO: I'm not aware of any case in which this Court has held that it is
permissible for Congress to condition Federal funding on the recipient's expression
of agreement with ideas with which the recipient disagrees. I'm not aware of
any case in which that kind of compelled speech has been permitted. And I would be interested in -- and it seems to
me like quite a -- a dangerous proposition. I would be interested in whatever
limitations you think there might be on that rule, which seems to be the
general rule that you're advocating. Other than the requirement of germaneness,
is there anything else.

Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness." Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.

Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue.

David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech. Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in a colloquy with Justice Sotomayor:

MR.
BOWKER: And what Rust says, and I – I think we fall back on Rust, which we
think is just on all fours with where we are here, and that is what the government
cannot do -- and I think this answers your question -- is outside the
government program the government cannot control private speech. And it was critical
in that case -- Justice Rehnquist, at pages 196 and 197, said, "The
doctors there and the public health organizations there are free to engage in
their own private speech and their own activities, and they are not required to
endorse any viewpoint they don't, in fact, hold." And here -­

It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,

JUSTICE SOTOMAYOR: I would have
less problem accepting your message if there weren't four major organizations
who were exempted from the policy requirement . . .

There seems to be a bit of
selection on the government in terms of who it
wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.

In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities. Unfortunately, the rationale supporting that fourth entity was not explored.

The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act. The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain. More certain is that Justice Kagan's perspective will be sorely missed.

Integral to the same-sex marriage cases of Perryand Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas. Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause.

Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review. Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights. Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the
life of one of the two men
most central to it?" Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay.

There is much that’s questionable about this assertion of implicitly
boundless state authority over family affairs. A famous pair of Supreme
Court decisions from the 1920s armed parents with rights under the Due
Process Clause to educate their children as they see fit, in resistance
to state laws. Pierce v. Society of Sisters
gave parents the right to choose private or religious schools despite
an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state
law in Washington that gave grandparents the right to visit their
grandchildren over the parents’ objection. Justice O’Connor wrote the
court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into
last week’s argument. But you will listen in vain for the voice of
Justice William O. Douglas, who brushed away concerns about what he
dismissively called “this federalism” to ask: “Has any member of this
court come out and said in so many terms it’s the constitutional right
of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.